Election Administration: Designing Dimensions of Legal Reform

By Carl W. Dundas

The legal design is the key instrument in creating the substratum of good election administration. It is the legal design of the electoral framework that facilitates the application of best electoral practices and empowers electoral management bodies to create, maintain, and apply best electoral practices.

It is the legal design that sets the tone for transparency, creates the tools for good management practices, and ensures the maintenance of oversight of a level playing field during election campaigns.

The reform of election administration is often triggered by post-general elections performance audits to identify and remedy weaknesses observed at the last general election and enables the election environment to be resilient and experience continuous renewal through the legal reform process.

• Language: English
• Publisher: AuthorHouse UK
• Release date: May 27, 2015
• ISBN: 9781504940351

Carl W. Dundas

Carl W. Dundas, LLB, LLM (Lon.), barrister-at-law (Gray’s Inn), is an election expert. Mr. Dundas has offered technical assistance in electoral matters in many countries, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Nigeria, South Africa, Tanzania, and Zambia. He has been a part of the commonwealth support team to Commonwealth Observer Groups to Bangladesh, Guyana, Kenya, Malaysia, Malawi, Pakistan, Mozambique, South Africa, Tanzania, and Zambia. Mr. Dundas advised on election organization and management in Jamaica, Kenya, Liberia, Malawi, Mozambique, Nigeria, South Africa, and Sierra Leone. Mr. Dundas led commonwealth secretariat’s electoral technical assistance missions to Guyana, Kenya, Malawi, Mozambique, Namibia, Nigeria, Sierra Leone, South Africa, Tanzania, and Zambia. He carried assignments in areas, such as designing electoral frameworks for a neutral and impartial electoral management body, drafting of instruments for transition from military regimes to multiparty democracy, and he organized capacity-building seminars and workshops. He coordinated a post-election audit exercise in Botswana (2004) and advised on the implementation of post-election review recommendations in Nigeria (2003–04). Mr. Dundas advised on constitutional reform relating to fundamental provisions, dealing with electoral legislative schemes in many countries, including Guyana, Lesotho, Malawi, South Africa, and Tanzania and advised on electoral legislation in Antigua and Barbuda, Cayman Islands, Jamaica, Kenya, Lesotho, Liberia, Malawi, Nigeria, and Sierra Leone. Mr. Dundas led the support team to the commonwealth observer missions to elections in Malaysia (1990), Zambia (1991), Kenya (1992), Guyana (1992 and ’97), Malawi (1994), Mozambique (1994), Tanzania (1995), Zanzibar (Tanzania), and Trinidad and Tobago (2000). He also served as the technical adviser to the commonwealth preelection observation mission to Namibia in 1989 and to the Commonwealth Observer Group to South Africa in 1994. Mr. Dundas was chairman of the Electoral Boundary Delimitation Commission of the Cayman Islands in 2003 and 2010. As an independent electoral consultant from 2001 to 2006, Mr. Dundas advised many election management bodies (EMBs) on reform and modernization, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Lesotho, Liberia, Nigeria, and Tanzania. In 2006, Mr. Dundas became chief of party of the International Foundation for Electoral Systems (IFES) Africa Union Support Program Union Support Program (funded by USAID) to advise the African Union on the establishment of a Democracy and Electoral Assistance Unit (DEAU). The DEAU was established in May 2008, and he remained as its adviser at the Africa Union in Addis Ababa until 2010.

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© 2015 Carl W. Dundas. All rights reserved.

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Published by AuthorHouse 05/22/2015

ISBN: 978-1-5049-4034-4 (sc)

ISBN: 978-1-5049-4035-1 (e)

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Contents

Acronyms and Abbreviations

Preface

Note about the Author

Other Works by the Author

Introduction

Chapter 1 Designing Legal Reform of Election Administration

Chapter 2 Reform of Constitutional Provisions Relating to Elections

Chapter 3 Design of an Electoral System

Chapter 4 Reform of Electoral Management Bodies

Chapter 5 Reform of Boundary Construction of Electoral Districts

Chapter 6 Compilation of an Accurate, Current and Complete Voters’ Register

Chapter 7 Reform of Registration and Role of Political Parties

Chapter 8 Design of Procedures for Registration of Election Contestants

Chapter 9 Reform of Election Campaign Regulations

Chapter 10 Reforming Electoral Stakeholders’ Role

Chapter 11 Reform of Election Logistics Regime

Chapter 12 Reform of Polling Day Processes

Chapter 13 Reform of Voting and Counting Processes

Chapter 14 Protection of Secrecy of the Vote

Chapter 15 Reform of Election Observation and Monitoring

Chapter 16 Reform of an Electoral Sanctions Regime

Chapter 17 Reform of Electoral Dispute Mechanisms

Acronyms and Abbreviations

Preface

The quest for free, fair and credible democratic elections has been growing in importance nationally and attracted regional and international prominence in many countries, especially in emerging democracies. This is a welcome development, which is long overdue, as the stability and economic development of many new and emerging democratic countries may be influenced by the outcome of elections that are believed to be free, fair and credible by the local stakeholders and independent domestic and international election observers.

The quality of democratic election services is improving through better training techniques for electoral officers whose professionalism is beginning to be felt in non-partisan conduct in the preparatory election processes and for the conduct of polling. The need for careful attention and techniques to handle details of election administration is slowly seeping through to electoral management bodies, and particularly to their managers of logistics, that untimely despatches of essential polling materials, or the shortage of such supplies on Election Day, can no longer be tolerated.

New election technologies are being put to use in various preparatory and polling processes, especially in compiling the voters’ register and in the voting and counting processes, through different forms of electronic voting and counting. These developments hold great potential for speeding up the electoral process and enhancing its efficiency, and perhaps generating some reduction in the cost of holding democratic elections.

This work is aimed at focussing on the role that a sound design of an electoral legislative scheme can play in the reform of election administration to enhance its efficiency, particularly in emerging democracies. With more than thirty-five years’ experience in designing dimensions of electoral legislative schemes, sharing insights and lessons learned may assist fresher minds to continue and improve the quality of the conversation on new techniques in the modernisation of election administration.

This work contains some practical tips based on experience that a properly crafted electoral legislative scheme can vest in an EMB the ability to opening the pathway to best electoral practices.

Carl W. Dundas,

Milton Keynes, England.

20/05/2015

Dedicated to my grandson Jago

Note about the Author

Carl W. Dundas, LL.B, LL.M (Lon.), Barrister-at-law (Gray’s Inn), is an Election Expert. Mr. Dundas has offered technical assistance in electoral matters in many countries, including Aceh (Indonesia), Antigua & Barbuda, Botswana, Cayman Islands, Guyana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Nigeria, South Africa, Tanzania and Zambia. He has been a part of the Commonwealth support team to Commonwealth Observer Groups to Bangladesh, Guyana, Kenya, Malaysia, Malawi, Pakistan, Mozambique, South Africa, Tanzania and Zambia.

Mr. Dundas advised on election organisation and management in Jamaica, Kenya, Liberia, Malawi, Mozambique, Nigeria, South Africa and Sierra Leone.

Mr. Dundas led Commonwealth Secretariat’s electoral technical assistance missions to Guyana, Kenya, Malawi, Mozambique, Namibia, Nigeria, Sierra Leone, South Africa, Tanzania and Zambia. He carried assignments in areas such as designing electoral frameworks for a neutral and impartial electoral management body, drafting of instruments for transition from military regimes to multiparty democracy, and he organised capacity-building seminars and workshops. He co-ordinated a post-election audit exercise in Botswana (2004) and advised on the implementation of post-election review recommendations in Nigeria (2003-04).

Mr. Dundas advised on constitutional reform relating to fundamental provisions dealing with electoral legislative schemes in many countries, including Guyana,, Lesotho, Malawi, South Africa and Tanzania; and advised on electoral legislation in Antigua and Barbuda, Cayman Islands, Jamaica, Kenya, Lesotho, Liberia, Malawi, Nigeria and Sierra Leone.

Mr. Dundas led the Support Team to the Commonwealth Observer Missions to elections in Malaysia (1990), Zambia (1991), Kenya (1992), Guyana (1992 & 97), Malawi (1994), Mozambique (1994), Tanzania (1995), Zanzibar (Tanzania) and Trinidad and Tobago (2000). He also served as the technical adviser to the Commonwealth pre-election Observation Mission to Namibia in 1989 and to the Commonwealth Observer Group to South Africa in 1994.

Mr. Dundas was Chairman of the Electoral Boundary Delimitation Commission of the Cayman Islands in 2003 and 2010. As an independent electoral consultant from 2001 to 2006, Mr. Dundas advised many election management bodies (EMBs) on reform and modernisation, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Lesotho, Liberia, Nigeria and Tanzania.

In 2006, Mr. Dundas became Chief of Party of the International Foundation for Electoral Systems (IFES) Africa Union Support Program Union Support Program (funded by USAID) to advise the African Union on the establishment of a Democracy and Electoral Assistance Unit (DEAU). The DEAU was established in May 2008 and Mr. Dundas remained as its adviser at the Africa Union in Addis Ababa until 2010.

Other Works by the Author

Organising Free and Fair Elections at Cost-Effective Levels, Commonwealth Secretariat (1993)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 1, Part 1, Commonwealth Secretariat (1996)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 1, Part 2, Commonwealth Secretariat, (1998)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 2, Part 1 Commonwealth Secretariat (1999)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 2, Part 2, Commonwealth Secretariat (1999)

Election Management Bodies: Constitutive Instruments, Commonwealth Secretariat, (1999)

Improving the Organization of Elections: A 2006 Perspective, Ian Randle Publishers, 2006

Observing Elections the Commonwealth’s Way: The Early Years, Ian Randle Publishers (2007)

The Lag of 21th Century Democratic Elections: In the African Union Member States, AuthorHouse, USA, 2011

My Favourite Election Anecdotes and Snippets, AuthorHouse, USA, 2012

My Wonderful World of Elections, AuthorHouse, USA, 2011

Close Elections and Succession in the African Union, AuthorHouse, USA, 2012

Electoral Essays and Discourses, AuthorHouse, USA,

Introduction

Legal review hub

Election administration reform may have many dimensions depending on its nature, scope and goals. The perspective may be more political than electoral and the approach more procedural than substantive, but invariably the aim is to improve the efficiency of the election administration as perceived by the reformers. Reform of electoral administration may involve constitutional issues, such as electoral systems, or procedural matters dealing with election preparations and voting. Whatever the nature of the reform, policy makers and lawyers are invariably involved at some stage of the development and finalization of the new ideas.

This work will look at the design of the various dimensions of election administration reform from the lens of the legal focus with prismatic effect on the electoral process. The clarity of thought and language in drafting reform clauses is always important in their enactment and subsequent applications.

The opportunity to design a comprehensive election administrative scheme seldom arises, except through violent rebellion or, even less frequent, through separation by democratic means; thus designing reform of election administration often aims at specific issues to be solved or improved upon. Nevertheless, for the purposes of this work, the designing of the various dimensions of reform of election administration will be tackled in a comprehensive manner, with the hub of the design being the legal consideration.

The legal design will be cast in the frame of best electoral legal practices, with generous space being given to user-friendly considerations reserved for issues relating to gender equality, youth, marginalised and disadvantaged people, and organizations.

The overall goal of this work is to explore realistic ways of improving election administration through reform to make it attractive to new and young voters, while continuing to stimulate the interest of the long-time voters. Electoral reform that seeks to broaden the base of best electoral practices, particularly in new and emerging democracies, holds out the best ways to foster and nurture the growth of democratic elections.

It is hoped that election administration, seen from the vantage point of reform of the electoral legislative scheme, will envelope the entire electoral process and related activities and sharpen the tools at the disposal of electoral managements.

Chapter 1

Designing Legal Reform of Election Administration

General legal landscape

In recent years the organisation of multiparty democratic elections has attracted international attention. Previously, election results largely passed unnoticed, even though the losing parties often challenged the election conduct and results. Happily, at the beginning of the twenty-first century, democratic elections, particularly in emerging democratic countries, are closely scrutinised by international and local election observers, and sometimes even by impartial monitors appointed by the national election management body (EMB) itself. The international gaze under which election organisation has to contend is forcing EMBs to take steps to improve election organisation, with a view to delivering better election services and at the same time enhance the quality of freeness and fairness of the elections. In these and other respects the electoral legislative scheme has a key role to play. For the purposes of discussing the design of reform of election administration, the legislative scheme includes the constitutional provisions relating to elections, if any, the primary electoral law, regulations, rules, guidelines, instructions, directives, and manuals.

The scope of the legislative scheme often sets the substratum upon which the framework for getting right the delivery of free, fair and credible elections is built. The design of an electoral legislative scheme should ensure that the provisions are applied in a manner consistent with the constitutional provisions, and in an impartial manner and are also consistent with the particular country’s international obligations¹ and commitments with respect to democratic elections.

The current trend in emerging democracies is to design a comprehensive legislative scheme, which ensures that the integrity of the electoral process is guaranteed and, at the same time, accommodates the full participation of political parties and civil society organisations in election preparation and conduct. Practice has shown that there are a growing number of state jurisdictions, which are including the fundamental election provisions in their constitution and creating a flexible regime for construction of constituency or electoral district boundaries than erstwhile existed. These developments have placed EMBs at the centre of the responsibility for election administration and control, and hence for the delivery of free, fair and credible elections.

In addition to the constitutional provisions dealing with the franchise and election management, the legislative scheme should include the principal election enactment, regulatory provisions, and may cover codes of conduct, for example, in respect of election administration, political parties and the publicly owned media, as well as manuals for election officers.

Constitutional provisions

An election management body may be established by the constitutional instrument or by statute law in a given State. Some States, for example, the United Kingdom, Australia and Canada, established their respective EMB by statute law, while others like Ghana, India and Kenya did so as a constitutional body, which can only be substantially changed by invoking the procedure for changing the constitution. This makes an EMB that is established by the constitutional provisions more difficult to alter, being in some cases deeply entrenched and requiring a qualified majority and a referendum to effect change, than an EMB, which is set up by statute law. Where electoral provisions are enshrined in the constitution, the ruling party for the time being, will be more inclined to cooperate with other political parties, if it desires a change in those provisions, unless it has the required parliamentary majority to effect the change without the consent of the other political parties.

The hurdles that the constitutional procedures impose on ruling parties, which wish to change the electoral provisions to their advantage, have given opposition parties a feeling of greater protection than if those provisions were contained in statutory law, which can be altered by a majority in the parliament. In this context however, it should be noted that the emergence of the dominant party syndrome in many countries of Africa and Southeast Asia, for example, in Africa, Botswana, Ethiopia, Namibia, Nigeria, South Africa, Rwanda, and Malaysia and Singapore in Asia, frequently get in excess of two-thirds majority votes in general elections, enough to change the constitution without the support of the parliamentary opposition parties.

The electoral provisions, which are considered appropriate to be set out in the constitution may vary according to the local considerations, some examples are as follows: Belize sets out the establishment of the EMB and the conduct of elections in the Constitution.² Ghana’s Constitution deals with the franchise, establishment of the EMB, the right to form or to join a political party, as well as the delimitation of constituencies.³ In India, the Constitution has provisions establishing an EMB, dealing with the franchise, the electoral roll, barring the interference of the courts in electoral matters and reserving seats for Scheduled Castes and Scheduled Tribes in the House of the People.⁴ While enshrining electoral provisions in the constitution generates confidence in the electoral system, only the essential provisions should be dealt with in that way, otherwise the legislative scheme might become difficult to change and hence inflexible because of the length of time it normally takes to effect constitutional change.

Electoral law⁵

The scheme of an electoral law should be designed to take account of all matters relevant to the delivery of free and fair elections. This trend has taken hold in many of the emerging democracies in the developing world. It has the advantage of preserving the integrity of the electoral process by ensuring that the EMBs concerned exercises control in line with their responsibility, over the process in its entirety. Schemes that do not follow this approach sometimes have the power to delimit the boundaries of constituencies or electoral districts vested in a body other than the EMB in the given jurisdiction. A similar situation exists with respect to voter registration, which is sometimes attached to a national identification system, and as such is controlled by an authority other than the EMB within the jurisdiction concerned. The registration and funding of political parties sometimes fall outside the regulatory control of the primary EMB in the country concerned.

An election legislative scheme should be clear, in order to facilitate ease of implementation. Legal draughtspersons are often fond of their traditional craft and will hesitate to subordinate legal elegance to simplicity. Notwithstanding professional rectitude, it is important that an election legislative scheme is so drafted that it aids smooth application and minimises the scope for political disputes with respect to its interpretation. The average length of an up-to-date election legislative scheme will run into several tens of sections, whether or not the jurisdiction is that of a small State with a few thousand electors or a large one with several millions electors. In other words, there is, as it were, an irreducible minimum set of provisions that should be included in an acceptable election legislative scheme, although those key provisions may vary according to local circumstances in each jurisdiction.

Electoral management bodies

Electoral management body is the description given to individuals who are responsible for national or local election administration. In order to perform their tasks successfully these individuals need to act fairly and efficiently. They need to gain the confidence of the stakeholders in the elections conducted. These are straightforward attributes that have become commonplace in election organisation in established democracies, but are yet to be widely present in many of the emerging democracies. In the main, the delivery of free, fair and credible elections in established democracies thrives on the confidence, which the participants in the electoral process have in its organisation and results. The clarity and completeness of the legislative provisions dealing with a particular EMB do influence its performance in its local circumstance and so much care ought to be taken in designing each regime.

Many established democracies constitute their EMB through the use of national or local government officials and the ordinary courts system is used to settle breaches of the election law. That general approach and the machinery it supported was perceived as in accord with fairness and impartiality that permeated the democratic fabric of the society. The rise of one-party political system and the mistrust of government led to a breakdown in confidence in government officials who organised elections in emerging democracies.

The trend towards an independent EMB gained momentum, when the one-party political system was discredited during the nineteen nineties. But the independent electoral management body concept was not a new one, for the Indian Constitution in the late nineteen forties had established such a body, which has set a formidable record of fairness and impartiality. The present concept of the independent EMB is aimed at ensuring that election administrators act independently of the instruction or influence of outside entities, particularly the ruling political party of the day. In this way, it is believed that fairness and impartiality as between the political parties that replaced the one-party system, where that existed, can be achieved. In general, an independent EMB, because of its attributes of impartiality and fairness, has been taking over election functions, such as delimitation of electoral districts, which under the Westminster model of constitution, was frequently conferred on constitutional bodies, which were often weighted in favour of the ruling political party of the day.

In designing the framework for an EMB, whether within constitutional provisions or within the election legislative scheme, consideration should be given to the size of the body and the rationale for the number of members chosen. The size of an EMB may range from one, as in Canada and India, until 1998, to twenty-one in Kenya until 2007. In given situations, size may be related to the geo-political division of the country, as in Sierra Leone or to the number of political parties in the country, as is the case of Kenya. The general trend is to have an EMB of three or five members, though higher numbers are not infrequently encountered.

The formula for appointing an independent EMB is not always straightforward. Individuals of good standing in their community, with no active political affiliation and who meet the stipulated professional or other qualification, if any, are the preferred choice. However, in some jurisdictions, such as Jamaica, Guyana and Malawi, preference was given to the nominees of political parties to serve as members of the EMB. This raises the question of the independence or impartiality of each nominee with respect to the political party that nominated him or her and has the potential to adversely affect the status of the EMBs concerned. The rationale for political party nominees on EMBs is mainly to generate confidence by political parties in the electoral process. That approach had a measure of success in the transitional elections in Malawi and Mozambique in 1994 but had a dubious track record in both confidence-building measures and in delivering non-controversial general elections in both Jamaica and Guyana. Instances have occurred when members of EMBs, who were party nominees, placed party allegiance above the commitment to the EMB and its goal of free, fair and credible elections.

The legislative provisions, whether constitutional or statutory, can hardly dictate the actual selection of individual members of an EMB, but such provisions can set out minimum qualifications governing their appointment. In practical terms, the quality of impartiality of an EMB depends largely on its members, particularly the chairman of the body. Sometimes perception is important in electoral development and the event of selecting and appointing EMB members is usually one such occasion. Appointment by the governing party of the day, in their own discretion, is not a commendable procedure. Much more desirable is a process that involves genuine participation of the opposition parties and the governing party. Some EMBs are in the felicitous position of having appointments machinery that is free from any political party influence. In the best traditions of multiparty democracy, best practice requires that, whatever the nature of the appointment formula and the method of selecting or nominating individuals for membership of EMBs, the overriding duty of members are to assist in the task of delivering free, fair and credible elections.

The nature of a given EMB may be influenced by the size of a State or by financial resources availability. Some small States find it necessary to use part-time members of their EMBs, while others use temporary members to undertake major election processes and to conduct elections. While non-permanent or part-time membership of EMBs may appear to be cost-effective, the overall efficiency of such EMBs is likely to suffer from lack of continuity.

Elections are costly activities, which, if not funded adequately and on a timely basis, could fail, triggering huge adverse consequences for the EMBs and all the stakeholders concerned. Thus careful attention should be paid to the budget requirements and the procedures for budget preparation, approval, disbursements and accountability in the constitution and or election legislation.

The legislative framework should ensure that EMBs function in proper order internally; that is to say, operate with sound rules of procedure, meet frequently with a stipulated quorum, record minutes of meetings, transparency of action among the membership, and so forth.

Structure of EMBs

The structure of EMBs may consist of different tiers. This is usually the case in a federal State, where there may be a central or federal level, a provincial or state branches and local government authorities. The design of an electoral legislative scheme should carefully define the relationship between all tiers of electoral management. In cases where the authority of the EMBs runs throughout all the levels of election administration, such as in India, Australia or Malaysia, common standards are facilitated. Where the authority is divided, as in Nigeria, where local government election management does not fall within the purview of the national EMB, different standards, particularly in training, voter education and poll preparation, result.

In small unitary States, the structure of EMBs is usually simple and there is little or no need for competing competences between the central EMB and subordinate bodies. Yet the case of Zanzibar and mainland Tanzania offers an example of two autonomous EMBs with almost equal competence in their respective geographical areas in the State of Tanzania. That situation resulted in uneven performances by the two bodies in both general elections of 1995 and 2000.

Some jurisdictions, for example Cameroon, allow for management of disputes and polling at the level of polling district. However multiple autonomous administrative structures, unless they are well managed, may not necessarily enhance best electoral practices.

Some EMBs are given express powers in the legislative framework to delegate their functions and powers to a member or to an employee, as in the case of New Zealand⁶. Other EMBs use a different technique to ensure that control of subordinate bodies is achieved. Thus in India, the central EMB does not delegate its functions to Regional Commissioners, but rather appoints them to assist the EMB.⁷

Qualifications of members

The requirement of stipulated qualification for the chairpersons and members of EMBs is not found to be widespread practice. Many small States do not have the spread of professional resources to divert or exclude individuals, who have achieved high professional standing, from their usual tasks to serve EMBs. Moreover, the judiciary, which is a favoured professional pool from which to recruit EMBs’ chairpersons, is associated in some jurisdictions with the governing political party of the day, and so opposition parties may not necessarily perceive the judiciary as neutral or impartial body. Yet an appointment formula, which stipulates a minimum qualification for the chairperson and members of EMBs, sets a pointer for the authorities selecting and appointing individuals to such offices. It is important that each member of an EMB is able to understand the issues involved in election preparation and conduct. In line with the general guidance to the appointing authority, general phrases, such as ‘persons of integrity’ or ‘high national standing’ are sometimes used in the legislative scheme.⁸

While some countries like India, Barbados, Malaysia and Canada do not stipulate qualification for EMB members, others like Australia,⁹ New Zealand,¹⁰ Pakistan¹¹ and Namibia,¹² do.

Tenure

The issue of tenure of the chairperson and members of an EMB has many strands. The appointment of the chairperson may be for a stipulated period of time, usually five or seven years, but in some jurisdictions the appointee may hold office until retirement age. The retirement age of the chairperson varies according to the jurisdiction concerned, for example, in Canada it is sixty-five years, in Ghana, seventy years, in Malaysia the chairperson and members serve until sixty-five years. Where an EMB is set up for fixed period only, it follows that all its members will be appointed for a limited duration. This approach is not helpful in fostering an independent EMB and does little to enhance efficiency of the electoral process.

The risk of arbitrary removal of any member of an EMB is real and so a transparent procedure and an impartial tribunal to determine any complaint, which may lead to the removal of a member, is now recognised best practice.¹³ Those EMBs whose membership consists of nominees of political parties may have members removed at the request of nominating political party. The usual cause for removal of a member of an EMB is either inability to carry out the functions as a member or misbehaviour. The issue of misbehaviour is often controversial. Does an EMB member who is nominated by an opposition party misbehave, if he/she makes derogatory remarks about the leader of the governing party? Can the nominating political party seek the removal of a member on purely political grounds? Perhaps, not, as a dispute along these lines in Antigua and Barbuda indicated.

Conflict of interest

The election legislative scheme should contain provisions, which ensure that members of EMBs avoid situations of conflict of interest. Members who have an interest or potential interest that come before the EMB for consideration and decision should notify that body of their interest in a timely manner and refrain from participation in the consideration of that matter. Failure to do so should constitute misbehaviour and amount to a cause for removal from membership. An example of such a provision may be seen in the Australian and Malaysian legal schemes.¹⁴

Legal status of EMBs

The legal status of EMBs has often been raised and occasionally even the courts have been asked to clarify the matter. The legal status has a bearing on the nature of ‘independence’ enjoyed by independent EMBs compared to those that are or in the nature of government departments and which are represented in court by governments’ attorneys-general. Occasionally the lack of clarity in status and independence causes embarrassment to both the EMBs concerned and the government. In one case, the Attorney General, who usually represented the EMB, had to stand down when the EMB was involved in an action against government and appear for government instead.¹⁵ In a case in the High Court of Kenya in 1992, the presiding Judge found that the EMB could be sued separately from the Government, although the law was unclear whether the EMB was a body corporate.¹⁶ For examples of EMBs being expressly clothed with corporate status, see provisions establishing the EMBs of Kenya¹⁷, Jamaica¹⁸, Nigeria¹⁹ and New Zealand.²⁰

Framework for financing

The funding of EMBs is an area that needs careful attention, particularly in emerging democracies. The plea for adequate and timely funding is heard from EMBs across the developing world. Legislative schemes often do not provide a clear framework for EMBs’ funding and bureaucratic delays in approval and disbursement of funds frequently destroy schedules for major election processes. The current position can be improved upon, and already a trend is emerging in new EMBs. Established democracies have dealt with the problem through administrative efficiency, which often disguises the legislative deficiencies.

The most widely used approach to EMBs’ funding is budget allocation through a government ministry or department, usually the Finance Ministry. This legal route is the easy way, because it avoids new constitutional concepts and in many cases may require constitutional amendments. In practice, many independent EMBs have been compromised by inadequate funding allocation, compounded at times by untimely disbursements of the sums allocated. The upshot is that such EMBs are perceived as not being in charge of their affairs, schedules and vital target dates. The situation rapidly degenerates into loss of confidence in the EMBs so affected and the electoral process which they manage. There are cases, where the responsible ministry or department was accused of deliberately starving the EMB of funds in order to prevent election processes from happening on schedule.²¹ Of course, there are instances, where government ministries handle EMBs funding efficiently, but election is too important an event in the life of a state to leave its proper funding to chance. Clear legal provisions that apportion obligations should govern an EMB’s budget preparation, consideration, and timely approval and disbursement.

An improved formula that is more in line with the neutrality and independence of EMBs can be fashioned, with variations, along the lines of tried mechanisms used by established democracies such as Australia, Canada and Britain. The essence of the formula is that EMBs are allocated an initial sum of money or advance to carry on operations in accordance with stipulated principles. Additional sums may be allocated. The expenditure is audited and approved by the Parliament. This procedure offers flexibility, but it assumes that resources are always available to fund election operations.

The preferred formula and procedure for funding EMBs in emerging democracies is one that allows the budget to be directly voted on by parliament or national assembly, thus avoiding the intervention of a government ministry or a department. The budget is prepared by the EMB and submitted to the national parliament or assembly, either through the Speaker or the chairman of a committee charged with the responsibility to examine the budget, before it is approved by parliament or assembly. The EMB would be its own accounting officer for the purposes of accountability to the national parliament or assembly. In 2010, a trust fund mechanism into which the government’s contribution and other monies were paid was introduced in Nigeria to finance INEC’s electoral activities. This approach is expected to improve the financial independence of INEC.

Code of conduct

The growth in the number of independent EMBs and the increase in the membership have thrown up some undesirable features, which are potentially harmful to best practices in election management. The accusation of misbehaviour on the part of individual members of EMBs is becoming more prevalent²² and the breakdown of good working relationship between EMBs and their respective Executives (Cabinet) ²³is not an infrequent occurrence. Although the provisions recommended above with respect to the avoidance of conflict of interest will assist in strengthening the purity of the behaviour of EMBs, a code of conduct designed specifically for the members of EMBs is necessary and should be legally enforceable. The contents of the code should focus on issues such as transparency of a given EMB’s decisions and actions, relationship with the Executive, political parties and civil society bodies, and the conduct of individual members.

Functions

The goal of reforming election administration is to improve the quality of free, fair and credible multiparty elections within a given jurisdiction. In order to achieve such a goal, the functions conferred on the EMB need to be inclusive and commensurate with the responsibility reposed in that body to deliver free, fair and credible elections. The range of functions that may be expressly conferred on an EMB include, to-

i. Ensure that the electoral processes meet internationally recognised democratic electoral practice;

ii. Promote conditions conducive to the conduct of open and fair elections;

iii. Promote knowledge of sound democratic election processes;

iv. Demarcate electoral boundaries for national, state and local government elections;

v. Establish and maintain liaison and co-operation with political parties, civic society organisations, and the media;

vi. Provide advice to the national assembly on electoral legislation and propose changes to election legislation for the enhancement of the electoral system;

vii. Undertake research into electoral matters;

viii. Have the primary responsibility to promote election, voter and civic education relating to elections;

ix. Encourage independent monitoring and observation;

x. Promote co-operation with and among persons, institutions, governments and organisations;

xi. Publish materials on matters relating to its functions;

xii. Promote public awareness of electoral and national assembly matters by means of the conduct of education and information programmes and other means that relate to its functions;

xiii. Adjourn, postpone, or order fresh elections, if scheduled elections are disrupted by natural disaster, violence or acts of civil disobedience; and, where necessary, for whatever cause, extend the voting hours in a particular location or region;

xiv. Provide, in cases approved by the minister of foreign affairs, assistance in matters relating to elections (including the secondment of personnel and the supply or loan of material) to authorities of foreign countries or to foreign organisations;

xv. Subject to the Constitution, have power to request the head of State or the head of a provincial government to make available to the electoral commission or to a regional representative such non-emergency vehicles as may be necessary for the discharge of the functions of preparation of the voters’ register and the conduct of elections;

xvi. Prescribe the qualification and terms of service for the appointment of all officers of the commission; and

xvii. Prepare annually a rolling five years budget for consideration and approval of a joint select committee of the national assembly.

Accountability

The legislative scheme should ensure that an EMB is accountable to the national assembly or parliament by requiring annual reports and reports on every election conducted under its supervision and control.

Scope of legislative framework

The scope of the legislative framework determines how comprehensive or otherwise the legislative scheme ought to be. The most important aspects of an independent or impartial EMB have been dealt with in outline above, but many other components of an electoral legislative scheme will be dealt with below in this work. These may include, electoral system, delimitation of the boundaries of electoral districts or constituencies, voters’ register and the right to vote, physically challenged voters, compulsory and voluntary registration and voting, registration of political parties, election campaigns, campaign financing, access to the media, balloting procedures, counting and tabulation of votes, agents of political parties and candidates, enforcement of electoral law, election petition and election observers.

Other elements of the legislative framework

An electoral legislative scheme often makes reference to prescribed forms, which are to be set out in a schedule thereto. This reference indicates that a standardised form should be designed and published for use for the purposes stated in the law. Forms, which are not designated as prescribed forms may be standardised for administrative purposes by an EMB, but such forms have a different status from the prescribed ones. Prescribed forms should be user-friendly and contained all the relevant information set out in respect thereof in the law.

Election regulations & manuals

Election regulations fall into two categories, namely election rules (in some jurisdictions also called election regulations) and registration regulations. Election rules aim at explaining the electoral law in a coherent manner to assist election administrators in the application of the law. The rules must be interpreted and applied in a manner consistent with the law (including any constitutional provision on the subject matter). The rules should take account of any administrative lacunae and procedural deficiencies and propose solutions for both eventualities. Election rules, by way of example, should focus on each significant election process, with a view, in appropriate cases, to create a step by step guidance to field officers, polling and counting officers, as well as to training and election and voter education officials. The details with respect to the acquisition of election materials and supplies, receipt and storage, security, transportation and timely distribution thereof should be guided by the election rules. In a similar vein, the rules should spell out in detail the step by step procedure for selection of polling locations, access by voters with disability, lay out, equipment, and accommodation of election personnel, party agents, peace officers and observers in respect of each polling site.

Registration regulations are intended to clarify and simplify the procedures with respect to the registration of voters and the compilation of a voters’ register not unlike the role played by election rules in relation to other electoral processes. The regulations are aimed at assisting the administrators and officers in executing the registration exercise, as well as the persons qualified for registration and the political parties, whose representatives are scrutinising the process, in order to ensure that the process is carried out according to legal procedures. In many jurisdictions, registration regulations are used to elaborate upon and clarify phrases like ‘ordinarily resident’, ‘qualification for registration’, and ‘eligible persons for registration’. Similarly, continuous registration procedure, the closing of supplementary lists and their inclusion as a part of the certified register, as well as the cut-off date prior to an election, are usually set out in the regulations. Registration regulations, like election rules, must not be inconsistent with the electoral law.

Manuals are useful election tools to assist field officers, returning officers, presiding officers, poll clerks and counting officers and their assistants, as well as candidates and their agents and party representatives in understanding, interpreting and applying the election law, rules and regulations. Manuals should be written with clarity, simplicity and accuracy, in order to avoid misunderstanding and misinterpretation of the law and rules and regulations. There must be no conflict or inconsistency between manuals and the law, rules or regulations.

Chapter 2

Reform of Constitutional Provisions Relating to Elections

Introduction

During the 1990s the world witnessed a large number of instances where countries found it necessary to develop electoral legislative schemes as a framework for democratic governance. The thrust started with the ending of the Cold War when the Union of Socialist Soviet Republics (USSR) Empire fell apart and its former members, including Russia and the east European countries, opted for independence. Around the same time, cracks in the apartheid regime in South Africa and South West Africa (later Namibia) were developing and Namibia gained independence in 1990, to be followed by the demise of the apartheid system in South Africa in 1994. Perhaps no less dramatic for the countries concerned, including Zambia, Kenya, Malawi and Tanzania, the one-political party system collapsed to be replaced by multi-party democracy. During the period, many countries also experienced the rise and fall of military rule, including Nigeria, and other countries, like Liberia, Lesotho and Sierra Leone, followed; later in the period many Arab countries experienced civil conflicts. In a few cases, new States emerged from civil conflicts, for example, Eritrea from the Ethiopian conflict and South Sudan from the Sudan conflict. These disparate situations eventually necessitated constitutional and electoral reform of varying scope and often set the stage for creative designs of constitutional provisions relating to elections.

Concept of fundamental electoral provisions

The concept of extending constitutional provisions to fundamental electoral provisions is not universally shared and thus may not be considered best practice. Some countries, including Australia, Canada, the United Kingdom and the United States of America, mainly for historic reasons, or because they lack a comprehensive constitution, do not have constitutional provisions relating to the fundamental electoral provisions. In these countries, the electoral legislative scheme deals with the electoral process and related matters, sometimes in more than one enactment. The United States of America has a different electoral structure which vests electoral matters mainly within the jurisdiction of the States and not in the Federal Government.

Another preliminary issue to be confronted is the rationale for including the fundamental electoral provisions in the constitution. Some electoral experts are of the view that by inserting such provisions in the constitution and not in the electoral law, they not only attract greater importance, but make it more difficult to be removed by amendment, since it is often more